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Tribunal criticises government lawyers for “trench warfare” mentality and “inappropriate” conduct


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In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children.

While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC).

The main litigation involved four children in Calais seeking entry to the UK to join family members here. The Home Office had earlier been found by the tribunal to have acted unlawfully in failing properly to apply the Dublin Regulation to the children’s cases and operating a procedurally irregular and unfair decision-making process: see AM [2017] UKUT 262 (IAC).

The Home Office had been ordered to make new decisions. Officials had done so, but had repeated the exact same errors of unlawfulness in the new decisions. Further, the Secretary of State’s legal team had “not been slow to attack (some might say disparage) the Tribunal’s judgments and orders”. Reading on, we learn this was two pronged:

Firstly, launching an appeal which was “aggressive and disparaging” of the tribunal.

Secondly, extraordinarily, the two barristers instructed by the Home Office had seemingly written a personal note to a High Court judge hearing related litigation which contained in the tribunal’s view

various assertions of judicial impropriety, a lack of judicial impartiality and equality of treatment of the parties and improper purpose. It is significantly inaccurate, incomplete and unbalanced. It contains, in substance, collateral allegations of judicial misconduct, casting grave aspersions on the impartiality and integrity of the President and another senior judge of this Chamber.

Returning to the immediate case, the Home Office had made new decisions on the children’s cases but these were held to be

a hopelessly inadequate attempt to comply with this Tribunal’s orders and judgments.

President McCloskey suggests that a root cause of the issues in the case is the Home Office’s “entrenched practice” of failing spontaneously to disclose material documents, including redacting documents to the point that they were incomprehensible. There are other potential explanations.

It would be fair to say that President McCloskey was unimpressed with the conduct of the Government Legal Department:

I consider that the GLD communications have in many instances been antithetical to the ethos of judicial review. They were frequently inappropriately confrontational and defensive, resonant of a (hopefully) bygone era of private litigation trench warfare. Linked to this, there is an unavoidable concern that excessive time, effort and energy have been invested in communications of this kind when the focus should more properly have been on complying with reasonable requests for disclosure of documents and kindred requests. This, in turn, has diverted the resources of both the Applicants’ legal representatives and the Tribunal into unnecessary contentious issues and areas. All of this was pre-eminently avoidable.

It does not end there, though:

I conclude, reluctantly, that the Secretary of State’s conduct of all of these cases has been inappropriate. It has failed to adhere to the high standards expected of government departments in judicial review litigation. The allegiances owed by the Secretary of State to the court in public law proceedings arise out of a species of partnership. The essential tenets of this partnership are that the public authority concerned will, figuratively, play its cards face up and the court, in turn, will be mindful of its supervisory (not appellate) jurisdiction, will accord such deference as is appropriate according to the context and will fashion remedies which respect the differing roles of the public authority as primary decision maker and the court as supervisory judicial authority. All of this is embedded in the separation of powers and the rule of law itself.

Crikey. But nor does it end there:

I consider that, having regard to the governing principles expounded above, it should not have been necessary for this Tribunal to express itself in these terms. That said, one month later there is no evidence that the Secretary of State has absorbed the central message of the order. Quite the contrary: there has been dogged resistance to frequent and proactive communication and co-operation with the Applicant’s legal representatives and the agencies, charities et al with whom they typically interact and much time has been invested in purporting to justify this. Stated succinctly, the Secretary of State, in this discrete respect, has defied the Tribunal’s order. This is another, freestanding matter of profound concern.

The reader is left with the impression that the Home Office and the Government Legal Department have done everything in their power to thwart the entry of refugee children from Calais despite explicit orders from the Upper Tribunal.

The bland official headnote ignores all this to and fro and focuses instead on the legal significance of the judgment:

1. Section 25 (2) (c) of TCEA 2007 invests the upper Tribunal with the same powers as the High Court in matters of liberty to apply.

2. The mechanism of liberty to apply may be invoked for the purpose of pursuing a declaratory order that the Tribunal’s principal order in judicial review proceedings has not been satisfied, particularly (but not exclusively) where the latter is a mandatory order.

3. In evaluating the scope of liberty to apply in any given case the Tribunal will seek to give effect to the overriding objective.

4. A mandatory order may be discharged where it has served its main purpose and its perpetuation will advance no discernible end.

The case raises interesting questions about the client-lawyer relationship between Home Office Ministers, civil servants, Government Legal Department solicitors and barristers on the Treasury panel. And this is not the only recent case to raise such issues: see also the case of Samim Bigzad.

These issues are far from unique to government. In a major study on the ethics of in-house lawyers, Mapping the Moral Compass, a team of researchers including Professor Richard Moorhead found that 9% of respondents indicated that saying “no” to their organisation was to be avoided, even where there was no legally acceptable alternative to suggest, and that as many as 65% said that achieving what their organisation wanted was their main priority. Respondents for the survey were drawn from the public, third and commercial sectors.

Claimant lawyers in the immigration jurisdiction are accustomed to being accused implicitly and sometimes explicitly of having too close a relationship with clients. In the Hamid line of cases individual lawyers have been publicly “named and shamed” and, occasionally, referred to their professional regulator. Similar questions of dubious procedural tactics and client-closeness perhaps increasingly arise regarding government legal teams, although we are yet to see any real sanctions against government lawyers.

Source: AM & Ors, R (on the application of) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) (8 September 2017)

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